Kirkpatrick v. State

515 S.W.2d 289, 1974 Tex. Crim. App. LEXIS 1928
CourtCourt of Criminal Appeals of Texas
DecidedNovember 6, 1974
Docket48630
StatusPublished
Cited by46 cases

This text of 515 S.W.2d 289 (Kirkpatrick v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirkpatrick v. State, 515 S.W.2d 289, 1974 Tex. Crim. App. LEXIS 1928 (Tex. 1974).

Opinions

OPINION

MORRISON, Judge..

The offense is misapplication of county funds under Article 95, Vernon’s Ann.P.C.; the punishment, two years probated.

Appellant’s first contention is that the evidence is insufficient to support the conviction because it was not shown that the appellant converted the $3.00 described in the indictment to his own use and benefit. The indictment charged basically that on or about October 15, 1970, the appellant, as Justice of the Peace, converted $3.00 belonging to Bexar County. The court charged the jury that the date alleged could mean any date between June 22, 1969, and June 21, 1972. The State’s evidence showed and the appellant admitted that he failed to account to the county for a total of $1594.00 which he had collected from individual defendants as fines in criminal cases during the said period of time set out in the court’s charge. Such monies were withheld for up to 14 months in appellant’s bank account while appellant was periodically turning over a portion of the funds collected to the cóunty and falsely reporting that these were all the monies collected. Only when an audit was instituted and appellant was called to account did he pay the county the $1594.00 due. We hold that the unauthorized retention by the appellant of this money due the county is sufficient evidence to support the jury’s verdict that the appellant converted these funds to his own use. See Vernon v. State, 170 Tex.Cr.R. 150, 338 S.W.2d 728; Mayse v. State, 156 Tex.Cr.R. 360, 242 S.W.2d 371. The State was not limited to the showing of $3.00 as being the subject of conversion. Mayse v. State, supra; Kugle v. State, 124 Tex.Cr.R. 550, 64 S.W.2d 961.

Grounds of error two, three, nine and ten relate to the admission of evidence and the refusal to give limiting charges regarding what appellant contends were extraneous offenses, to-wit: the receipt by the appellant of fines from some 275 persons accused of crimes, which fines he only partially transmitted to the treasurer.

We conclude that the $1594.00 which was embezzled, which included conversion of funds received from some 275 individuals, all involved circumstances to prove the State’s main case. The appellant urges that all transactions other than the one involving an individual by the name of Kouns were extraneous transactions. We reject this contention. The gravamen of the offense under this particular statute, Article 95, V.A.P.C., is embezzlement of funds belonging to a public body, not the taking of property from a particular individual or individuals. The indictment accordingly did not allege any particular transaction or any particular individual, and specifcally did not mention Kouns. In [292]*292receiving funds in an official capacity, the appellant became, in effect, a trustee of funds for the county. Because of the nature of the employment involved, the State need not show that appellant converted any particular sum from a particular source to his own use, but may rely on a circumstantially proven case. The appellant, in fact, urged and urges on appeal that the evidence is insufficient to show that he converted any funds to his own use. These many transactions in which the appellant failed to account for funds collected were all a part of the State’s main case, and constituted circumstances in the chain of events by which the State showed the ultimate conversion of county funds to the appellant’s own use and benefit. • The court charged the jury on the law of circumstantial evidence. We conclude that the court did not err in refusing to give the limiting charge as requested by appellant. Dillard v. State, Tex.Cr.App., 477 S.W.2d 547; Cox v. State, 166 Tex.Cr.R. 587, 316 S.W.2d 891; 31 Tex.Jur.2d, Instructions, Sec. 132 (1962). See Tex.Digest, Criminal Law,

We are further convinced that appellant was not entitled to a limiting charge, because he not only testified himself as to the details of the ancillary transactions, but also initially introduced some of them.

In identifying Defendant’s Exhibits Nos. Three, Four, Five, Six and Seven, appellant explained that they were checks, drawn on his account, issued to various individuals who had had cases pending against them in appellant’s court. When questioned by his own counsel as to the nature of these checks', appellant admited to a discrepancy between the amount paid by these individuals in fines and the actual amount assessed against them.

“Q (DEFENSE ATTORNEY) All right, sir. Now what was the purpose or the reason in making these checks to these individuals?
A (APPELLANT) The reason being that those individuals had deposited — left with the court in my office an amount of money which was greater than the amount of fine and cost that was assessed by me in the judgment of these particular cases.”

The record further reflects that upon direct examination of the appellant by his own attorney, the appellant testified that he agreed with the auditors on their finding of a $1594.00 discrepancy on the county books.

“Q Okay. And when you got there (to the auditor’s office) what, if anything, was said by Mr. Sanderson or by Mr. Cox (the auditors) ?
A . (H)e said, well Judge as you know we’ve been auditing your books and so forth and we found a discrepancy of quite a large sum of money on a number of cases. I don’t know justly exactly how he put it. I believe he said a number of cases. I don’t know for sure.
Q All right, and what did you say, if anything ?
A I told him, yes, I agree.
Q All right and what, if anything did Mr. Cox or Mr. Sanderson say after that?
A Well, he advised me that I owed the county fifteen hundred and ninety four dollars. . . . He asked me could you pay the money and he asked me would you pay the money, meaning the county.”

Given this testimony, it is clear that the appellant was not entitled to a limiting charge on his own admissions. See Moss v. State, Tex.Cr.App., 364 S.W.2d 389; Sapp v. State, Tex.Cr.App., 476 S.W.2d 321, cert. den. 406 U.S. 929, 92 S.Ct. 1806, 32 L.Ed.2d 131; and Judge Onion’s discussion distinguishing Moss in his dissent in Lacy v. State, Tex.Cr.App., 424 S.W.2d 929, 936.

We further find that, even if error, the failure to give a limiting instruc[293]*293tion was harmless error. An examination of the evidence reveals that the only defenses urged and the only issues the jury was called upon to resolve were (1) whether appellant converted the funds to his own use, and (2) whether the funds belonged to individuals rather than to the county as alleged in the indictment. In view of the testimonial admissions by the appellant that he was the person who committed all of the acts, the failure of the court to charge the jury not to consider the ancillary transactions unless they first believed the appellant committed such acts beyond a reasonable doubt obviously did not harm the appellant.

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Bluebook (online)
515 S.W.2d 289, 1974 Tex. Crim. App. LEXIS 1928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkpatrick-v-state-texcrimapp-1974.